Strict Liability in Contemporary European Codification: Torn between Objects, Activities, and Their Risks (original) (raw)
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The Boundaries of Strict Liability in European Tort Law
2004
For the transnational lawyer the present European situation is equivalent to that of a traveler compelled to cross legal Europe using a number of different local maps. To assist lawyers in the journey beyond their own locality the Common Core project was launched in 1993 at the University of Trento under the auspices of the late Professor Rudolf B. Schlesinger. The aim of this collective enterprise is to unearth what is already common to the legal systems of European Union member states. Case studies widely circulated and discussed between lawyers of different traditions are employed to draw at least the main lines of a reliable map of the law of Europe. Contents About the editors xix Relevant statutory and codified provisions xxi Table of abbreviations xlv Part I • Background 1 Strict liability in European tort law: an introduction 3 I. Features and justifications of strict liability rules 5 A. Strict liability versus liability for fault 5 1. Points of contact between strict liability and fault liability 5 2. Defining strict liability through delimitation from liability for fault 7 a. The standard of care in negligence law 8 b. Strict liability as a negative notion 9 c. Strict liability as a positive notion i. An inelastic concept of liability ii. A preference for factual tests of causation iii. A narrow definition of available defenses B. Controversies about the role of strict liability rules 1. Strict liability and the defendant's sphere of freedom 2. Internalising the cost of accidents through strict liability 3. Strict liability as a means of creating reciprocity of risks a. The concept of ultra-hazardous risks b. Strict liability as a requirement of commutative justice c. The vagueness of the concept of ultra-hazardous risks 4. The concept of respondeat superior a. Liability for the tort of another b. The creation of enterprise liability C. Alternative compensation schemes and the role of private insurance 1. The discussion about no-fault compensation schemes 2. The impact on tort compensation in Europe 3. Consequences for the parties' conduct II. Sources of strict liability in Europe A. German, Austrian and Greek law B. Spanish, Portuguese and Italian law C. French law vii D. English and Scots law E. Scandinavian systems and Dutch law F. The importance of harmonised law 1. Legislative measures 2. Judicial harmonisation of tort law 2 Strict liability versus negligence: an economic analysis 1. Introduction 2. Unilateral accidents 3. Rule of no liability 4. Negligence 5. Relaxing assumptions 6. Strict liability 7. Relaxing assumptions 8. Bilateral accidents 9. The 'cheapest cost avoider' 10. Rule of no liability 11. Negligence Simple negligence Negligence with the defense of contributory negligence Comparative negligence rule 12. Strict liability Simple strict liability Strict division of losses Strict liability with the defense of contributory negligence Strict liability with the defence of relative negligence 13. Relaxing assumptions 14. Comparing strict liability and negligence 15. Strict liability under the disguise of negligence and negligence under the disguise of strict liability in product liability 16. Liability caps in strict liability regimes 17. Multiple tortfeasors 18. Risk aversion, liability law and insurance 19. Liability and uncertain legal standards Literature Other References Cases viii contents Part II • The comparative evidence: case responses and editors' comparative remarks 3 The case studies 69 I. Methods and objectives of this project 69 A. Some remarks on the history and methodology 69 B.
Foundation and Development of Strict Liability in Continental Europe
The aim of the present paper is to discuss the origins and the development of strict liability, one of the standards used in order to assess liability deriving from torts (namely, liability stemming from the causation of damages to third parties due to a subject’s conduct) and object of much debate. After looking at both its philosophical and economic foundation, attention will be paid to the main peculiarities characterizing the relevant discipline in some jurisdictions of Continental Europe, deemed to share part of the dynamics underlying the development of the discussed criterion for assessing tort liability, and precisely France, Spain, Italy and Germany. In light of the evidence thus gathered, it will be concluded that, notwithstanding the controversial nature of such standard, strict liability may be said to be an instrument that aspires both at encouraging efficiency and at achieving a shareable balance of the interests and values involved, hence responding to the evolution of society, in terms of progress and modifications of priorities and needs.
European integration studies, 2017
The contributory negligence and the apportionment of the damages were dealt with in our last essay, putting both the latest Hungarian judicial practice and the legal doctrinal traditions into the focus. We alleged that the risk-allocating aspect has more and more effect on the approach to the delictual liability law nowadays, especially in the field of strict liability. Furthermore, we could observe the increasing protection of interests of the injured persons in the judicial practice, which means an increasing encumbrance upon the individuals, who carry out dangerous activities (operators) and are obliged to have compulsory insurance or other covering for compensation. On the other scale of the balance, there is the appropriate riskassessment that can be expected from injured or endangered persons, and the assumption of the well-known risk too, which factors have detrimental effect on the interests for compensation. The research of the phenomena and the relating issues cannot be en...
Hazardous Activities and Civil Strict Liability: The Regulator’s Dilemma
2011
This paper addresses the conditions for setting up strict civil liability schemes. For that it compares the social efficiency of two main civil liability regimes usually enforced to protect the environment: the strict liability regime and the "capped strict liability scheme". First, it shows that the regulator faces an effective dilemma when he has to enforce one of these schemes. This because the social cost of a severe harm (and the associated optimum care effort) is determined independently of any liability regime. This independency has economic consequences. First, victims and polluters pit one against another about the liability regime that the government should enforce. Hence, financially constrained polluters prefer the ceiling of responsibilities while victims wish to extend the amount of redress under a "standard" strict liability. Economic criteria for enforcing a regime rather than another one are lacking. Second, the paper shows that implementing civil strict liability rules may be done by setting up care standards as for instance in the nuclear or the maritime sectors and demanding to the injurers to comply with them. We show that this goal can be achieved by resorting to some friendly monitoring corresponding to frequent random controls with low fines rather than few controls that should involve heavy fines.
The Constitutionality of Strict Liability Offences
Dublin University Law Journal, 2011
In 1996 Keane J, then an ordinary member of the Supreme Court, suggested that the complete removal of mens rea from criminal offences would be unconstitutional. Ten years later the Supreme Court in CC v Ireland struck down a statutory rape offence because of an absence of mens rea and the unavailability of a defence of mistake as to the victim’s age. This contribution to the Festschrift for Chief Justice Keane revisits the question of what constitutional principles are breached by the use of strict liability in criminal law. The suggested answer is that in an extreme case, such as Keane J envisaged in 1996, the legality principle may be breached but apart from that it is difficult to explain the unconstitutionality of strict liability per se in Irish law. The first part of this article critically analyses CC v Ireland, arguing that the judgment did not convincingly show incompatibility between the impugned strict liability offence and the Constitution. The second part of the article surveys potential constitutional bases for restraining strict liability; it considers the recommendation that the presumption of innocence should be thought of as restraining strict liability and emphasises the legality principle as an important check on criminalisation. The question of the constitutionality of strict liability in criminal law and the question of the value of strict liability in criminal law may be related but are not the same. It may be that, on balance, strict liability ought not be used, especially for serious offences, but that does not mean there must be a constitutional doctrine to rule it out. This article is concerned with the question of the constitutionality of strict liability in Ireland. It generally neither favours nor disfavours the use of strict liability in criminal law; rather, it somewhat doubts that the Constitution puts, and should put, the use of strict liability off limits to the Oireachtas. The main reason for this is that judicial review of strict liability is problematic because there is an apparent absence of apt standards by which judges can decide what forms of strict liability are constitutionally permissible. Candidate constitutional doctrines for limiting strict liability are canvassed below and found to be problematic. That is not to say, however, that a doctrine to coherently limit strict liability per se could not be developed, but it is emphasised how such development would lead the courts deeper into the controversial territory of deciding the moral limits of the criminal law.
G. Alpa - General Remarks on Civil Liability in the European Context
This article considers the evolution of the civil liability system in Europe from the perspective of the establishment and application of rules deriving from regulations and directives that define special types of torts. Neither the EU rules nor the principles developed by the Court of Justice always identify all the necessary components of the tortious act. There are cases in which certain elements are prescribed, and others which are left to the national courts to establish. Furthermore, there are instances in which the case configured by the EU rules is complete but where the national legislators are accorded a certain leeway to fill in the regulatory gaps. National rules are not always uniform and, thus, are not without ambiguity. For this reason, attempts have been made to standardise the governance of civil liability, and the models proposed to break the impasse are still relevant. But time moves on, and the standardisation process is lagging behind the ever-increasing pace of change in EU law.